In an
action to recover unpaid insurance premiums, the defendant
appeals from an order of the Supreme Court, Richmond County
(Dollard, J.), dated March 16, 2015, which granted the
plaintiff's motion for summary judgment on the amended
complaint and dismissing the defendant's counterclaims.

ORDERED
that the order is reversed, on the law, with costs, and the
plaintiff's motion for summary judgment on the amended
complaint and dismissing the defendant's counterclaims is
denied, without prejudice to renewal upon the completion of
discovery.

The
defendant is a roofing company. The plaintiff is an insurance
brokerage firm "in the business of property and casualty
insurance." The plaintiff furnished two commercial
general liability policies to the defendant. Each of the
policies issued contained a premium audit provision,
providing for an audit and adjustment of the premium after
the end of the policy term based upon the gross receipts of
the insured. With respect to the first policy, the premium
was $158.3340 per every $1, 000 of the defendant's gross
receipts. The defendant estimated its gross receipts to be
$300, 000, resulting in an advance premium of $47, 500. The
amount of the premium for the second policy was based on a
rate of $175.00 per every $1, 000 of the defendant's
gross receipts. Again, the defendant estimated its gross
receipts to be $300, 000, resulting in an advance premium of
$52, 500.

At the
end of the policy term, the audit for the first policy
computed the defendant's gross receipts to have been $1,
693, 441, resulting in an actual earned premium of $268, 129.
After crediting the defendant for the advanced premium
previously paid, and adding certain fees, $229, 012.90 of
that sum remained unpaid. When the defendant did not comply
with the plaintiff's demand for the additional payment,
the plaintiff commenced this action against the defendant to
recover that unpaid premium, plus interest, costs, and
disbursements. The complaint was later amended to add a cause
of action to recover unpaid premiums in the sum of $43,
792.18 relating to the second policy. The defendant asserted
counterclaims alleging that the plaintiff "induced"
the defendant to procure insurance by offering a low advance
premium, that the low advance premium was simply a "bait
and switch" tactic utilized by the plaintiff with full
knowledge that it would use the audit process to increase the
amount of the premium, and that the plaintiff's conduct
was fraudulent, and violated General Business Law § 349.

The
plaintiff moved for summary judgment on the amended complaint
and dismissing the counterclaims. In support of the motion,
it submitted an affidavit from its accounts receivable and
collections manager, the insurance policies, and the audit
statements. In opposition to the motion, the defendant
submitted the affidavit of its president, Mojsi Marke, who
averred that the defendant both performed roofing work, and
sold roofing materials. Marke stated that he had contacted
Najeeb Cabbad, a person who he had understood to be an agent
of the plaintiff, seeking insurance for the portion of the
business that did roofing work, and not for that portion of
the business which sold roofing material. Marke averred that
the gross sales number of $1, 693, 441 included "work
other than roofing work, " specifically sales of
material only, without any roofing or installation labor. The
defendant's attorney stated in an affirmation in
opposition to the motion that the action was still "in
the very early stages and minimal document discovery had been
exchanged." The order appealed from granted the
plaintiff's motion and directed entry of judgment in its
favor.

The
Supreme Court should have denied that branch of the
plaintiff's motion which was for summary judgment on the
amended complaint without prejudice to renewal upon the
completion of discovery. Although the plaintiff demonstrated
its prima facie entitlement to judgment as a matter of law by
submitting the subject insurance policies, the audit
statements, and the affidavit of its accounts and receivable
collections manager (see e.g. Burlington Ins. Co. v Casur
Corp.,123 A.D.3d 965), in opposition, the defendant
raised a triable issue of fact. The defendant submitted the
affidavit of Marke, who averred that when the defendant
applied for coverage with the plaintiff, it was only seeking
coverage for that portion of its business that performed
roofing work, and not for that portion of its business which
sold roofing material. This raised a triable issue of fact,
as the policies do not define key terms such as
"exposure" and "gross sales, " and the
audit statements and the affidavit of the accounts and
receivable collections manager do not explain how the auditor
arrived at the "audit exposure" amounts.

The
plaintiff demonstrated its prima facie entitlement to
judgment as a matter of law dismissing the counterclaim
alleging fraudulent inducement by arguing that it is not
responsible for any negligence or misstatement made by
Cabbad, whom it describes as the defendant's insurance
broker. "In general, an insurance broker is considered
the agent of the insured, not the insurance company....
However, a broker will be held to have acted as the
insurer's agent where there is some evidence of action on
the insurer's part, or facts from which a general
authority to represent the insurer may be inferred"
(Matter of Temple Constr. Corp v Sirius Am. Ins.
Co.,40 A.D.3d 1109, 1111 [citations and internal
quotation marks omitted]). In opposition to the motion, the
defendant raised a triable issue of fact on this issue with
the affidavit of Marke, who stated that he understood Cabbad
to be an agent of the plaintiff.

To
prevail on its counterclaim to recover damages for deceptive
business practices under General Business Law § 349, the
defendant is required to show that the plaintiff engaged in a
deceptive act or practice, that the challenged act or
practice was consumer-oriented, and that the defendant
suffered an injury as a result of the deceptive act or
practice (see Valentine v Quincy Mut. Fire Ins. Co.,123 A.D.3d 1011, 1015). The plaintiff failed to establish its
prima facie entitlement to judgment as a matter of law
dismissing this counterclaim by showing that it did not
engage in acts or practices that were deceptive or misleading
in a material way when it issued its policies, since it did
not submit any evidence negating this claim. The
plaintiff's remaining contentions are without merit
(see Polonetsky v Better Homes Depot,97 N.Y.2d 46;
Lang v First Am. Title Ins. Co., 2012 WL 5221605,
2012 U.S. Dist LEXIS 151579 [WD NY, Oct. 22, 2012, No.
12-CV-266S]).

Accordingly,
the Supreme Court should have denied the plaintiff's
motion for summary judgment on the amended complaint and
dismissing the defendant's counterclaims. However, since
the defendant acknowledged that summary judgment was
premature, and further discovery may lead to relevant
evidence on issues including whether the plaintiff's
business practices have been investigated by federal or state
agencies and the results of any such investigations, and
Cabbad's ...

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